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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
In the Matter of
) File Number EB-09-PA-0287
J.M.J. Radio, Inc.
) NAL/Acct. No. 201032400002
Licensee of Station WQOR
) FRN 0017570847
Facility ID # 8092
)
)
NOTICE OF APPARENT LIABILITY FOR FORFEITURE
Adopted: December 1, 2010 Released: December 1, 2010
By the District Director, Philadelphia Office, Northeast Region,
Enforcement Bureau:
I. INTRODUCTION
1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
that J.M.J. Radio, Inc. ("J.M.J. Radio"), the licensee of radio
station WQOR in Olyphant, Pennsylvania, apparently willfully and
repeatedly violated Section 73.1125(a) of the Commission's Rules
("Rules") by failing to maintain a management and staff presence at
the Station WQOR main studio. We conclude that J.M.J. Radio is
apparently liable for a total forfeiture in the amount of ten thousand
dollars ($10,000).
II. BACKGROUND
2. On November 25, 2009, an agent from the Enforcement Bureau's
Philadelphia Office ("Philadelphia Office") conducted an inspection of
Station WQOR's main studio, which was located inside a church building
at St. Joseph Oblate Seminary, 1880 Highway 315, Pittston,
Pennsylvania. A church employee escorted the agent to the station's
main studio on the second floor of the church building. The agent
found that the main studio was locked. When the church employee opened
the door for the agent, the agent found no station personnel present.
The church employee reported that no one associated with Station WQOR
works at the main studio location and the room is always locked. He
further reported that, although he was not associated with Station
WQOR, he often helped the station engineer if he needed any assistance
at the main studio.
3. After speaking to the church employee, the agent contacted the station
engineer by telephone and requested his assistance with the
inspection. The station engineer arrived at the main studio within
thirty minutes and the agent conducted the inspection. In response to
questions about staffing at the main studio, the station engineer
reported that the room was always locked and that there were no
designated full-time or part-time personnel at the main studio. The
station engineer also reported that he usually came to the main studio
once a week to review Emergency Alert System (EAS) log printouts and
perform any necessary maintenance. The agent advised the station
engineer that the station must maintain a presence at its main studio
during normal business hours.
4. On December 17, 2009, another FCC agent attempted to conduct a
follow-up inspection at Station WQOR's main studio at 1880 Highway 315
in Pittston, Pennsylvania. The agent observed that there were no
employees at the main studio to facilitate an FCC inspection or to
provide public access. The agent then contacted the licensee and
conducted a phone conversation with an individual identified in the
station records as a Director and Officer of J.M.J. Radio. She
acknowledged that the main studio does not have any designated
personnel. The agent advised the J.M.J. employee that the station must
maintain a presence at its main studio during normal business hours.
The J.M.J. employee stated that she was not aware of the main studio
requirement and would thereafter staff the station's main studio as
required.
III. DISCUSSION
5. Section 503(b) of the Communications Act of 1934, as amended ("Act")
provides that any person who willfully or repeatedly fails to comply
substantially with the terms and conditions of any license, or
willfully or repeatedly fails to comply with any of the provisions of
the Act or of any rule, regulation or order issued by the Commission
thereunder, shall be liable for a forfeiture penalty. The term
"willful" as used in Section 503(b) has been interpreted to mean
simply that the acts or omissions are committed knowingly. The term
"repeated" means the commission or omission of such act more than once
or for more than one day.
6. Section 73.1125(a) of the Rules requires broadcast stations to
maintain a main studio. The Commission has interpreted Section 73.1125
(also known as the "Main Studio Rule") to require, among other things,
that a licensee maintain a "meaningful management and staff presence"
at its main studio. Specifically, the Commission has found that a main
studio "must, at a minimum, maintain full-time managerial and
full-time staff personnel." Although management personnel need not be
"chained to their desks" during normal business hours, they must
"report to work at the main studio on a daily basis, spend a
substantial amount of time there and...use the studio as a `home
base.'"
7. During the November 25, 2009 and December 17, 2009 inspections of
Station WQOR, agents found that there were no station personnel
present at the main studio. When an agent interviewed the station
engineer on November 25, 2009, the station engineer admitted that
Station WQOR does not have any designated full-time or part-time
personnel at its main studio and the room is always locked. Although
the agent explained the main studio staffing requirements to the
station engineer at that time, there were again no staff or management
available at the Station WQOR main studio three weeks later. An agent
then contacted an officer of J.M.J. Radio, who admitted that the main
studio does not have any designated personnel. Accordingly, based on
the evidence before us, we find that J.M.J. Radio apparently willfully
and repeatedly violated Section 73.1125(a) of the Rules by failing to
maintain a full-time management and staff presence at the Station WQOR
main studio during regular business hours.
8. Pursuant to the Commission's Forfeiture Policy Statement and Section
1.80 of the Rules, the base forfeiture amount is $7,000 for violation
of main studio rule. In assessing the monetary forfeiture amount, we
must also take into account the statutory factors set forth in Section
503(b)(2)(D) of the Act, which include the nature, circumstances,
extent, and gravity of the violations, and with respect to the
violator, the degree of culpability, and history of prior offenses,
ability to pay, and other such matters as justice may require. Here,
we find that J.M.J. Radio's failure to correct the violation after
receiving a warning during the first inspection was egregious and
warrants an upward adjustment. Applying the Forfeiture Policy
Statement, Section 1.80, and the statutory factors to the instant
case, we conclude that J.M.J. Radio is apparently liable for a
forfeiture in the amount of $10,000. We further order J.M.J. Radio to
submit a sworn written statement within 30 days of this NAL that it is
now in compliance with the Main Studio Rule.
IV. ORDERING CLAUSES
9. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
Communications Act of 1934, as amended, and Sections 0.111, 0.311,
0.314 and 1.80 of the Commission's Rules, J.M.J. Radio, Inc. is hereby
NOTIFIED of this APPARENT LIABILITY FOR A FORFEITURE in the amount of
ten thousand dollars ($10,000) for violations of Section 73.1125(a)
of the Rules.
10. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the
Commission's Rules, within thirty days of the release date of this
Notice of Apparent Liability for Forfeiture, J.M.J. Radio Inc. SHALL
PAY the full amount of the proposed forfeiture or SHALL FILE a written
statement seeking reduction or cancellation of the proposed
forfeiture.
11. IT IS FURTHER ORDERED that J.M.J. Radio Inc. SHALL SUBMIT a sworn
statement, as described in paragraph 8, within thirty days of the
release date of this NAL. The statement must be mailed to Federal
Communications Commission, Enforcement Bureau, Philadelphia Office,
One Oxford Valley Office Building, Room 404, 2300 East Lincoln
Highway, Langhorne, Pennsylvania, 19047-1859.
12. Payment of the forfeiture must be made by credit card, check or
similar instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced above. Payment by check or money order may be mailed to
Federal Communications Commission, P.O. Box 979088, St. Louis, MO
63197-9000. Payment by overnight mail may be sent to U.S. Bank -
Government Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St.
Louis, MO 63101. Payment by wire transfer may be made to ABA Number
021030004, receiving bank TREAS/NYC, and account number 27000001. For
payment by credit card, an FCC Form 159 (Remittance Advice) must be
submitted. When completing the FCC Form 159, enter the NAL/Account
number in block number 23A (call sign/other ID), and enter the letters
"FORF" in block number 24A (payment type code). Requests for full
payment under an installment plan should be sent to: Chief Financial
Officer -- Financial Operations, 445 12th Street, S.W., Room 1-A625,
Washington, D.C. 20554. If you have questions, please contact the
Financial Operations Group Help Desk at 1-877-480-3201 or Email:
ARINQUIRIES@fcc.gov. J.M.J. Radio, Inc. shall also send electronic
notification to NER-Response@fcc.gov on the date said payment is
made.
13. The written statement seeking reduction or cancellation of the
proposed forfeiture, if any, must include a detailed factual statement
supported by appropriate documentation and affidavits pursuant to
Sections 1.80(f)(3) and 1.16 of the Rules. The written statement, if
any, must be mailed to Federal Communications Commission, Enforcement
Bureau, Northeast Region, Philadelphia Office, One Oxford Valley
Building, Suite 404, 2300 East Lincoln Highway, Langhorne,
Pennsylvania 19047 and must include the NAL/Acct. No. referenced in
the caption. The statement should also be emailed to
NER-Response@fcc.gov.
14. The Commission will not consider reducing or canceling a forfeiture in
response to a claim of inability to pay unless the petitioner submits:
(1) federal tax returns for the most recent three-year period; (2)
financial statements prepared according to generally accepted
accounting practices ("GAAP"); or (3) some other reliable and
objective documentation that accurately reflects the petitioner's
current financial status. Any claim of inability to pay must
specifically identify the basis for the claim by reference to the
financial documentation submitted.
15. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
for Forfeiture shall be sent by Certified Mail, Return Receipt
Requested, and regular mail, to J.M.J. Radio, Inc. at 1880 Highway
315, Pittston, Pennsylvania, 18640.
FEDERAL COMMUNICATIONS COMMISSION
Gene J Stanbro
District Director,
Philadelphia Office
Northeast Region
Enforcement Bureau
47 C.F.R. S: 73.1125.
The agent found that the station had broadcast transmission capabilities,
operational EAS equipment, and a complete local public inspection file.
47 U.S.C. S: 503(b).
Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
violations for which forfeitures are assessed under Section 503(b) of the
Act, provides that "[t]he term 'willful', when used with reference to the
commission or omission of any act, means the conscious and deliberate
commission or omission of such act, irrespective of any intent to violate
any provision of this Act or any rule or regulation of the Commission
authorized by this Act...." See, e.g., Southern California Broadcasting
Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991).
Section 312(f)(2) of the Act, 47 U.S.C. S: 312(f)(2), which also applies
to violations for which forfeitures are assessed under Section 503(b) of
the Act, provides that "[t]he term 'repeated', when used with reference to
the commission or omission of any act, means the commission or omission of
such act more than once or, if such commission or omission is continuous,
for more than one day."
47 C.F.R. S: 73.1125.
Amendment of Sections 73.1125 and 73.1130 of the Commission's Rules, the
Main Studio and Program Origination Rules for Radio and Television
Broadcast Stations, Memorandum Opinion and Order, 3 FCC Rcd 5024, 5026
(1988) ("Main Studio and Program Origination Rules"), erratum issued, 3
FCC Rcd 5717 (1988) (correcting language in n.29).
See Jones Eastern of the Outer Banks, Inc., Memorandum Opinion and Order,
6 FCC Rcd 3615, 3616 & n.2 (1991) ("Jones Eastern") (noting that, "This
is not to say that the same staff person and manager must be assigned
full-time to the main studio. Rather, there must be management and staff
presence on a full-time basis during normal business hours to be
considered `meaningful.'"), clarified, 7 FCC Rcd 6800 (1992) ("Jones
Eastern II"). See also Birach Broadcasting Corporation, Notice of Apparent
Liability, 25 FCC Rcd 2635 (Enf. Bur. 2010).
Jones Eastern II, 7 FCC Rcd at 6802.
The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
of the Rules to Incorporate the Forfeiture Guidelines, Report and Order,
12 FCC Rcd 17087 (1997) ("Forfeiture Policy Statement"), recon. denied, 15
FCC Rcd 303 (1999); 47 C.F.R. S:1.80.
47 U.S.C. S: 503(b)(2)(E).
47 U.S.C. S: 503(b); 47 C.F.R. S:S: 0.111, 0.311, 0.314, 1.80, 73.1125(a).
See 47 C.F.R. S:1.1914.
(...continued from previous page)
(continued....)
Federal Communications Commission DA 10-2268
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Federal Communications Commission DA 10-2268